Deposition of Dr. Barry McCasland regarding IME

Deposition of Dr. Barry McCasland regarding IME [Client Name Redacted]

McCasland, M.D., Barry, (Pages 1:1 to 90:24)



  2. 11-A-4554-2




May 24, 2013

2:06 p.m.

Center for Specialty Medicine at Saint Joseph’s Hospital
Suite 515
5671 Peachtree Dunwoody Road, NE
Atlanta, Georgia
Genevie Morell, RPR, CCR-2760



For the Plaintiff:

#1 Amended Notice of Deposition of Barry McCasland, MD…………….5
#2 Curriculum vitae……………….6
#3 Correspondence between Dr. McCasland and Hawkins Parnell……………11
#4 Chart 1 of 2………………….12
#5 Chart 2 of 2………………….12
#6 Independent medical examination report……………………….20
#7 Detailed patient visit invoice….30
#8 Handwritten list of “relied upon”.31
#9 Handwritten list of “reasons believe highly suggestible personality type”……………..53
#10 Case list…………………….73
#11 Consultation………………….77
#12 North Fulton Hospital chart…….78
#13 North Fulton Hospital discharge summary………………………78
#14 North Fulton Hospital consultation………………….79


#15 North Fulton Neurology record…..80
#16 Medical narrative of Dr. Alan M. Harben regarding patient [REDACTED][REDACTED]………………………82
#17 Deposition information sheet……86
#18 Notice of Deposition of Barry McCasland, MD…………………86


By Mr. Butler…………………………….5



On behalf of the Plaintiff:


Butler Wooten & Fryhofer LLP
2719 Buford Highway
Atlanta, Georgia  30324

On behalf of the Defendant:


Hawkins Parnell Thackston & Young, LLP
4000 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, Georgia  30308

(Pursuant to OCGA 15-14-37 (a) and (b) a written disclosure statement was submitted by the court reporter to all counsel present at the deposition and is attached hereto.)


2 having been duly sworn, was examined and testified as
3 follows:
6 MR. BUTLER:This will be the deposition of
7 Dr. Barry McCasland taken pursuant to notice and
8 agreement in the case of [REDACTED] against Home Depot.
9 It will be taken pursuant to the Civil Practice Act
10 for all purposes permitted under the Civil Practice
11 Act.
12 Would you please state your full name for
13 the record.
14 A. Barry John McCasland.
15 Q. I know you’ve given depositions before, but
16 just to go over it one more time. If I ask a
17 question that is unclear, that you don’t understand,
18 please ask me to rephrase and I’ll do that. Is that
19 fair?
20 A. Yes, sir.
21 Q. If you do answer the question, I’ll assume
22 that means you understood it. Is that fair?
23 A. Yes, sir.
24 (Exhibit 1 marked.)


1 Q. I’ve marked as Exhibit No. 1 a copy of your
2 notice of deposition with a list of things I asked
3 you to bring.  Is that true?
4 A.  Yes, sir.
5 (Exhibit 2 marked.)
7 Q. And I think you brought a CV pursuant to my
8 request and I’ve now taken that and marked it as
9 Plaintiff’s 2, is that right?
10 A. Yes, sir.
11 Q. What’s the name of the company for which
12 you work?
13 A. Bernstein and McCasland MD, PC.
14 Q. I understand there’s a doctor — I’ll start
15 an exhibit stack over here. So the question is, I
16 understand there’s a Dr. Bernstein in your practice,
17 and you. Are there any other doctors?
18 A. Presently, no.
19 Q. How many employees do y’all have?
20 A. Five. They’re clerical.
21 Q. I think at one point there was a third
22 doctor practicing with you all. Am I wrong about
23 that or has he since left?
24 A. There was. In fact, on two occasions there
25 was a third doctor, two different individuals.


1 They’ve both come and gone.
2 Q. What’s your area of expertise as relevant
3 to this case?
4 A. I’m a general adult neurologist.
5 Q. I presume you’ve been qualified to testify
6 by Georgia courts in that area before as an expert,
7 is that right?
8 A. Yes, sir.
9 Q. Have you been qualified in any other areas
10 to testify as an expert in Georgia courts?
11 A. No, sir.
12 Q. Are there any other areas in which you
13 consider yourself an expert qualified to testify in
14 Georgia courts?
15 A. No, sir.
16 Q. Are you ready to testify in this case?
17 A. Yes —
18 Q. I cut you off.  Go ahead.
19 A. Yes, sir.
20 Q. If the trial was tomorrow, you’d be ready
21 to go, is that right?
22 A. Yes, sir.
23 Q. Is there any work that you wanted to do but
24 Home Depot or Home Depot’s lawyers suggested you not
25 do in this case?


1 A. No.
2 Q. Any work that you wanted to do but you were
3 prevented from doing by someone else?
4 A. No, sir.
5 Q. Have you met with lawyers who retained you
6 in this case before?
7 A. No, sir.
8 Q. Have you not met with Mr. Keith or Mr. Fox
9 before today?
10 A. No, sir. I just met him walking in the
11 door.
12 Q. Is this the first time you’ve ever worked
13 with the Hawkins Parnell law firm to the best of your
14 knowledge?
15 A. I’m asked that question all the time, sir,
16 and, honestly, having not a lot of familiarity with
17 the law firms, I really don’t know.
18 Q. Okay.
19 A. Also, I’ve seen people go from one firm to
20 another and answered that question how I thought it
21 should be and then found out I was wrong. So I don’t
22 know.
23 Q. Had you ever spoken with — we’ll take the
24 two lawyers in the case for Home Depot one at a time.
25 Had you ever spoken with Mr. Shane Keith, who is


1 seated to my left, before today on the phone or in
2 person?
3 A. Not to my knowledge.
4 Q. How about Warner Fox, ever spoken with him
5 on the phone or in person?
6 A. No, sir, I don’t believe so.
7 Q. Do you know who that is?
8 A. No, sir.
9 Q. How did you become involved in this case?
10 A. Someone contacted my office to schedule an
11 independent medical examination. It was placed on my
12 schedule. Medical records arrived and on the
13 assigned day, she came to my office.
14 Q. Do you know who first contacted your
15 office?
16 A. No, sir, I don’t.
17 Q. Have you ever done any work for Home Depot
18 before?
19 A. Not that I can recall.
20 Q. Do you have any idea who suggested your
21 name to the attorneys who represent Home Depot in
22 this case?
23 A. I do not.
24 Q. Were you surprised when the IME appeared on
25 your schedule?


1 A. No, sir. I do IMEs once, sometimes twice a
2 week.
3 Q. What did you do to prepare for this
4 deposition?
5 A. Went over my IME report and gathered the
6 things that you asked for, absent the billing
7 records, which is my fault.
8 Q. I think the billing records are on the way.
9 I heard you place a call before we went on the
10 record, is that right?
11 A. The staff is working on them.
12 Q. And the other documents to which you
13 referred are here on the table between us, is that
14 right?
15 A. Yes, sir.
16 Q. I wanted to ask about correspondence that
17 had passed between your office and the law firm of
18 Hawkins Parnell, and I know from our discussion
19 before we went on the record that some of it is in
20 these folders. I’m going to try to mark it in some
21 organized way.
22 Would this document have come in, is that
23 correspondence, or is that something generated
24 entirely within your office?
25 A. Generated entirely within my office.


1 Q. I’ve pulled out some loose papers out of
2 your file and have paper clipped them together. My
3 understanding is that what I hold in my hand and am
4 about to hand to you is not all the correspondence
5 you have between your office and the lawyers in this
6 case, but it is some of that correspondence, is that
7 right?
8 A. Yes, that’s correct.
9 (Exhibit 3 marked.)
11 Q. Have I now marked the stack of documents to
12 which we just referred as Plaintiff’s Exhibit 3?
13 A. Yes, sir.
14 Q. Where would I find the remainder of the
15 correspondence?
16 A. The initial correspondence would be in the
17  first chart on the left side. Other than the
18 demographic sheets, identification and consent form,
19 it would be these sheets here in my hand. These
20 represent telephone conversations back and forth
21 between my staff and whoever scheduled the IME.
22 Q. Then I’ll go back and clean this up on the
23 record in a second. It looks like this is
24 correspondence. I’m thinking there’s no other
25 correspondence in this stack here. Do you think


1 that’s right?
2 A. I believe that to be the case, yes.
3 Q. Okay.
4 A. There’s some other pages here which may
5 very well be the same ones that are in this chart.
6 Once again, these are office documents from my office
7 that are involved in the scheduling of the IME.
8 Q. I see, doctor, that you’ve brought two big
9 red folders with you today.
10 A. Correct.
11 (Exhibit 4, Exhibit 5 marked.)
13 Q. And I’ve now marked those two folders as
14 Plaintiff’s Exhibit 4 and 5, is that right?
15 A. Yes, sir.
16 Q. Is it true that contained within
17 Plaintiff’s Exhibit 3, 4 and 5 we have all the
18 correspondence between your office and the defense
19 firm involved in this case?
20 A. Yes, sir, to the best of my knowledge
21 that’s the case.
22 Q. When did you get the medical records in
23 this case?
24 A. I don’t know exactly. They probably showed
25 up just prior to the actual appointment.


1 Q. By the “appointment,” you mean the IME that
2 occurred on, I believe it was April 17 of this year,
3 is that right?
4 A. That’s correct.
5 Q. Have you ever made a presentation to an
6 audience that consisted of mostly lawyers?
7 A. No, I can’t recall that I have.
8 Q. Ever attended a presentation or seminar
9 where it was mostly lawyers present?
10 A. No, sir.
11 Q. How do you and Mr. Bernstein market this
12 practice?
13 A. We don’t.
14 Q. You don’t market it at all?
15 A. Do you mean advertise?
16 Q. Advertising would be a part of it.
17 A. Okay. If you mean other than that,
18 generally in medicine you establish good
19 relationships with referring doctors and they send
20 you patients and if they’re in turn happy with the
21 care their patients have gotten, they send you more.
22 If they’re not, they send you fewer.
23 Q. What about in terms of marketing for
24 litigation work to include IMEs and record reviews
25 and things like that?


1 A.Honestly, sir, I don’t reach out to anybody
2 and ask for it. It simply comes in.
3 Q. Does this office do any printed advertising
4 at all?
5 A. No, sir.
6 Q. Online advertising?
7 A. No, sir. We have a web page, but it’s
8 mostly a communication portal prior to appointments.
9 Q. I understand you’ve reviewed some medical
10 records in preparation for the IME and in preparation
11 for your deposition today. Are all the records that
12 you reviewed here on the table between us?
13 A. Yes, sir.
14 Q. And then I noticed some depositions in
15 either Plaintiff’s Exhibit 4 or Plaintiff’s Exhibit
16 5, I can’t recall which, are all the depositions that
17 you reviewed here on the table between us?
18 A. Well, I didn’t review any depositions.
19 They’re not medical records.
20 Q. Other than the medical records, what
21 documents are you relying on for your opinions in
22 this case, if any?
23 A. None. The only exception to that is here
24 in my hand. This arrived in the last day or two. It
25 was not part of my opinions when I created the IME


1 and I think it’s an engineering report.
2 Q. Are you looking at the thing from SEA?
3 A. Yes. I paged through it within the last
4 couple of days, but it was not part of — it was not
5 present when I did my IME.
6 Q. I see. So the documents you’re relying on
7 for your opinions in this case include the SEA
8 document that’s a part of Plaintiff’s Exhibit 3 and
9 the medical records that are in Plaintiff’s Exhibit 4
10 and 5, is that right?
11 A. Correct.
12 Q. Am I missing anything?
13 A. Not that I know of.
14 Q. Is it your position that any of the other
15 doctors who have been involved in Ms. [REDACTED]’s care
16 committed malpractice or were incompetent?
17 A. No, sir.
18 Q. Those doctors carried out their own
19 evaluations of Ms. [REDACTED] and then recommended care
20 as they thought was clinically appropriate, is that
21 right?
22 A. Yes, sir.
23 Q. Do you criticize them for doing those
24 things?
25 A. No, sir.


1 Q. In fact, that’s what doctors are supposed
2 to do, right?
3 A. Correct.
4 Q. You’re not testifying that they were
5 incompetent in making their diagnoses or making their
6 recommendations for treatment, is that true?
7 A. No, sir. I mean, yes, it is true that I’m
8 not.
9 Q. That’s my fault. I should clean that up.
10 Is it true that you are not testifying that
11 the other doctors who were involved in Ms. [REDACTED]’s
12 care were incompetent or committed malpractice in
13 either making their diagnoses or making their
14 recommendations for treatment?
15 A. That’s correct.
16 Q. In fact, a doctor has a right to form his
17 or her own clinical judgments and recommend the
18 course of treatment that that doctor thinks is
19 appropriate, is that true?
20 A. Yes, sir.
21 Q. You’re not criticizing Ms. [REDACTED]’s other
22 doctors for doing those things, reaching their own
23 conclusions and recommending their own courses of
24 treatment, are you?
25 A. No, sir.


1 Q. You’re not criticizing any of Ms. [REDACTED]’s
2 other doctors for failing to order other tests or
3 other evaluations on Ms. [REDACTED], are you?
4 A. No, sir.
5 Q. A patient has a right to rely on her
6  physicians when they make a diagnosis and recommend
7  treatment, is that true?
8  A. Yes, sir.
9  Q. In fact, it’s the doctors, not the patient,
10  who determines what tests or procedures are necessary
11 to make a diagnosis and recommend treatment, is that
12 true?
13 A. Yes, sir.
14 Q. And the patient has to rely on the doctors?
15 MR. KEITH: Objection.
16 A. May or may not, but that’s generally how it
17 works.
19 Q. Do you think a patient has a right to rely
20 on her doctors’ diagnoses and recommendations for
21 treatment?
22 A. Yes, sir.
23 Q. You’re not critical of Ms. [REDACTED] in this
24 case for relying on her doctors’ diagnoses and
25 recommendations for treatment, are you?


1 A. No, I’m not.
2 Q. You’re not suggesting that Ms. [REDACTED]
3 should have sought third, fourth or fifth opinions
4 before pursuing the courses of treatment that her
5 doctors recommended, is that true?
6 MR. KEITH: Object to form.
7 A. I’m not recommending that, no.
9 Q. Would you agree that throughout this
10 process, Ms. [REDACTED] has been a cooperative patient?
11 A. I don’t know. I only knew her for about 50
12 minutes. She was fairly cooperative with me.
13 Q. That’s a good point. Let me rephrase it.
14 Do you have any reason to think that in
15 pursuing treatment following this motor vehicle
16 accident that Ms. [REDACTED] has been anything other
17 than a cooperative patient?
18 A. I have no way of knowing.
19 Q. Do you have any opinion that she has, for
20 instance, failed to go to her follow-up appointments
21 like she should have?
22 A. I have no way of knowing.
23 Q. And you don’t have any way of knowing
24 whether she has adequately pursued the courses of
25 treatment recommended by her doctors, is that true?


1 A. True.
2 Q. You’re not critical of Ms. [REDACTED], are
3 you, for attending follow-up appointments or pursuing
4 the courses of treatment prescribed by her doctors,
5 are you?
6 A. No, I’m not.
7 Q. Do you think that Ms. [REDACTED] has been
8 lying about her symptoms?
9 MR. KEITH: Object to the form.
10 A. I haven’t formed my final opinion on that.
12 Q. What would you need to do to form your
13 final opinion on that?
14 A. I’m not quite sure, sir.
15 Q. Is it fair to say that as we sit here
16 today, you don’t know whether Ms. [REDACTED] has been
17 lying to her doctors?
18 A. Her other doctors or to me?
19 Q. To her doctors or to you? To anyone that
20 you know of?
21 A. I have no idea if she’s lied to her other
22 doctor. There was one instance, though, I believe
23 she was untruthful with me. If you’d like, I can
24 tell you what it was.
25 Q. Please do.


1 A. When we began the history portion of the
2 IME and I asked her to tell me what happened on the
3 day of her accident, she told me that she was — if
4 you’ll allow me, I can —
5 Q. Sure. Are you looking for your IME report?
6 A. Yes, sir.
7 Q. Let me get you a copy. I think I’ve got
8 one that’s not part of such a big file. I was going
9 to mark it anyway. Let’s take a break and get this
10 done.
11 (Exhibit 6 marked.)
13 Q. Have I now marked as Plaintiff’s Exhibit 6
14 your IME report?
15 A. Yes, sir.
16 Q. You were going to tell me about, I think
17 about a box and a refrigerator or a freezer?
18 A. That is correct. The way this began was I
19 asked her what happened on 9/21/2010. She said that
20 she was the operator of an SUV, was driving on State
21 Route 400 and had a collision. And I asked her what
22 she collided with and she said a box floating in the
23 air. She said it was about ten feet long and five
24 feet wide.
25 I asked her multiple times what the box was


1 and she just said it was a box, just over and over
2 again. She said she couldn’t tell me anything more
3 than it was a box.
4 I knew from having looked at the medical
5 records that it was a refrigerator and when I looked
6 at the medical records in more detail, she told the
7 emergency room physician, or at least this is what
8 the emergency room physician documents, that it was a
9 refrigerator.
10 I even asked her if you didn’t know what it
11 was at the time, has somebody, anybody told you
12 subsequently between then and now what the box was
13 and she said no. I just don’t believe that.  I
14 believe she knows it was a refrigerator and just
15 refused to tell me.
16 Q. Do you have any reason to believe that
17 Ms. [REDACTED] was untruthful with you as to anything
18 except the box-refrigerator issue that you described
19 in your report and orally just a few seconds ago?
20 A. Nothing that comes immediately to mind,
21 sir, no.
22 Q. If it does, let me know, please.
23 A. Will do.
24 Q. As to the refrigerator, can you think of a
25 reason that Ms. [REDACTED] might be trying to conceal


1 the contents of the box that struck her vehicle?
2 A. No, I can’t.
3 Q. Do you think it’s possible she was trying
4 to avoid telling you something that her lawyers had
5 told her?
6 MR. KEITH:  Object to the form.
8 Q. That she may have believed was privileged?
9 A. I have no way of knowing that.
10 Q. Would it matter to you if she had
11 identified the object as, I believe it was a freezer
12 in her deposition when she was being questioned by
13 defense counsel?
14 A. I think it would have furthered my
15 suspicions if that deposition took place before my
16 IME. It would have just been all the more proof, so
17 to speak, that she knew what it was.
18 Q. What significance do you attach to
19 Ms. [REDACTED] not telling you that the box contained a
20 freezer or refrigerator?
21 A. When somebody only tells you a half truth
22 the very first question you ask them, you wonder what
23 else they’re hiding, what else they’re not going to
24 be truthful about.
25 Q. Do you think it’s possible that she


1 believed you were asking for an impression from the
2 perspective of the moment when the box appeared on
3 her windshield?
4 MR. KEITH: Object to form.
5 A. No. I was very clear. I even asked her
6 subsequent to that has anyone told you what it was.
7 I was very clear about that. And she said no.
9 Q. In terms of talking with her other doctors
10 as reflected in the medical records, do you have any
11 reason to think that Ms. [REDACTED] was untruthful in
12 describing her symptoms to those doctors?
13 A. No, I have no evidence of that. In fact,
14 it appears from the 9/24/2010 emergency room record
15 that she actually did tell them what was in the box.
16 Q. And when I ask that question, I’m not
17 referring just to the box, but in general I’d like to
18 know if you have any evidence to suggest that
19 Ms. [REDACTED] was lying to other doctors who provided
20 treatment as reflected in the medical records that
21 you reviewed?
22 A. No, sir, I have no evidence of that.
23 Q. And you’re not saying that the other
24 doctors inaccurately wrote down what Ms. [REDACTED] told
25 them, are you?


1 A. No, sir.
2 Q. If someone were to say that excitement or
3 anxiety from a traumatic event could mask symptoms of
4 injury, would you agree with that?
5 A. I think before I could agree with something
6 so general I’d like it to have a little flesh.
7 Q. Would you agree or disagree with the
8 proposition that excitement from a traumatic event
9 such as a motor vehicle accident could mask the
10 symptoms of something like a neck injury, shoulder
11 injury or concussion?
12 A. Neck injury, sure. Shoulder injury, sure.
13 Especially if there were other injuries that sort of
14 took precedence over it. As far as a concussion
15 goes, if a concussion is serious enough, it affects
16 the very way that you communicate and view the world
17 and interact. It’s sort of a conundrum, you see. If
18 that was all affected, it couldn’t possibly not be
19 affected and then be affected later on. I don’t know
20 if that’s clear or not.
21 Q. I think I understand what you’re saying.
22 I’ll circle around and come back to it. Are the
23 symptoms of a concussion always evident immediately
24 after a concussion?
25 A.  No, sir.


1 Q. I’ll leave that alone then for right now.
2 We’ll come back to it.
3 Is it possible for the excitement from a
4 motor vehicle accident to mask the symptoms of a neck
5 injury or shoulder injury?
6 A. Yes, sir.
7 Q. If someone said that drugs such as Valium
8 could mask the symptoms of neck or shoulder injury,
9 would you agree with that?
10 A. Yes, sir.
11 Q. If someone said that drugs such as Valium
12 could mask the symptoms of a concussion, would you
13 agree with that?
14 A. I think so. I think I could see a way where
15 that would happen.
16 Q. All right. Let’s move on to your IME
17 report and its actual contents. I wanted to start on
18 page 13. We’ve already addressed some of this.
19 Actually, I believe it was on page 12 you said that
20 Ms. [REDACTED] had an oddly childish manner. Could you
21 describe what you mean by that?
22 A. She was very simplistic in her speaking,
23 chose very simple words, yet understood even very
24 complex ideas and sentences. It’s been my
25 experience, sir, having done this a long time, that


1 when people do that, they’re generally trying to
2 convince you that they’ve been head injured. They do
3 things, other things, too, sometimes, but that is a
4 main one. Others I’ve seen are triplet stuttering,
5 rocking, those types of things. But the use of very
6 simple terminology despite being able to understand
7 normal spoken sentences from a professional is just a
8 discordant thing that doesn’t go unnoticed.
9 Q. Is it your opinion that Ms. [REDACTED] was,
10 when she met with you, was deliberately using simple
11 words in order to convince you she had sustained a
12 head injury?
13 A. I don’t know if it was deliberate or not
14 and I alluded to that in my IME, which I’m sure we’ll
15 get to.
16 Q. Tell me about that now. What part of your
17 IME report are you referring to?
18 A. On page 13, the very last paragraph.
19 Q. I see.
20 A. I’ll read it into the record if you’d like.
21 Q. Well, it’s already in the record because we
22 marked your report as an exhibit. I will circle back
23 to that. I wanted to make sure it wasn’t something I
24 was going to miss.
25 So in terms of her childish manner, the


1 question is, I asked you to explain why you thought
2 she had a childish manner and you said she was using
3 simple words. Is there anything else that
4 contributed to her childish manner in your view?
5 A. Nothing that I can readily verbalize, sir.
6 Q. If something comes to mind, let me know.
7 A. Will do.
8 Q. Do you believe that Ms. [REDACTED] sustained a
9 concussion?
10 A. No, sir.
11 Q. In fact, you saw no evidence whatsoever of
12 any type of traumatic brain injury or concussion, is
13 that right?
14 A. Correct.
15 Q. You saw no evidence of any type of
16 postconcussion syndrome?
17 A. That’s correct.
18 Q. Is it true that the unremarkable MRI of the
19 brain by itself doesn’t rule out a concussion?
20 A. It is true it does not rule out a
21 concussion.
22 Q. Does your medical background allow you to
23 make judgments to a reasonable degree of medical
24 probability as to whether a given symptom or
25 diagnosis was caused by a motor vehicle accident?


1 MR. KEITH: Let me object to the form of
2 that question. You can answer it if you can.
3 A. You can only make that determination based
4 upon the history. Obviously you can only say
5 something is due to a motor vehicle accident if there
6 was in fact a motor vehicle accident.
8 Q. I see. So in order to determine whether a
9 given symptom or diagnosis was caused by a motor
10 vehicle accident, you have to either have reviewed
11 the medical records or evaluated the patient, is that
12 fair?
13 A. Additionally, you have to have some clear
14 idea that there was a motor vehicle accident.
15 Q, So in order to know whether a given symptom
16 or diagnosis was caused by a motor vehicle accident,
17 you have to either examine the patient or review the
18 medical records and you must know whether there was a
19 motor vehicle accident, is that true?
20 A. Correct.
21 Q. In this case, I take it that your position
22 is that your background as a medical doctor is
23 sufficient when combined with your review of the
24 record and examination of the patient to allow you to
25 determine whether Ms. [REDACTED] sustained a concussion


1 in the wreck that we’re here about, is that true?
2 A. Yes, sir.
3 Q. In order to determine whether Ms. [REDACTED]
4 suffered a concussion in this wreck you would need to
5 either review the records or evaluate Ms. [REDACTED], is
6 that true?
7 A. Yes, sir. Ideally both.
8 Q. And you did it both here?
9 A. Correct.
10 Q. What do you rely on in reaching your
11 conclusion that Ms. [REDACTED] did not suffer a
12 concussion in this wreck?
13 A. Concussion, sir, is a diagnosis made by
14 pattern recognition. If you’ve seen it a number of
15 times in all of its variations, you quickly get a
16 feel for it. As you pointed out, MRI doesn’t help
17 you. There are a lot of other tests that don’t help
18 you either. Not only the symptoms, which is the
19 history, and the lack of findings like, for instance,
20 the normal MRI, but also the course that it takes.
21 For instance, if somebody has progressively
22 worsening and worsening and worsening symptoms, it
23 just can’t be due to a concussion. That isn’t what
24 concussions do. So by pattern recognition, training
25 and experience in other words, is how you make those


1 determinations.
2 MR. BUTLER: Let’s take a quick break.
3 (Recess 2:37 to 2:38.)
5 Q. We’re back on the record. During our water
6 break we received your billing records in the case,
7 is that right?
8 A. Yes, sir.
9 (Exhibit 7 marked.)
11 Q. Have I now marked them as Plaintiff’s
12 Exhibit 7?
13 A. Yes, you have.
14 Q. Do you have any hourly billing records in
15 this case?
16 A. No, sir.
17 Q. Are you going to bill anyone for the time
18 you spent preparing for this deposition?
19 A. No, sir.
20 Q. Are you going to bill me for the
21 deposition?
22 A. You betcha.
23 Q. Are you billing the defense lawyers
24 anything at all other than the $1,800 recorded in
25 Plaintiff’s Exhibit 7?


1 A. As of now, sir, no.
2 Q. If we go further in this case will you bill
3 them?
4 A. If they ask me to do more work, then yes.
5 Q. I’ll get into your hourly rates and stuff
6 later. I was asking what you relied on to reach your
7 conclusion that Ms. [REDACTED] had not sustained a
8 concussion in this wreck and you had said training
9 and experience, I think, is that right?
10 A. Correct. Pattern recognition, in other
11 words.
12 Q. We’ll put in parentheses pattern
13 recognition. You’ve also relied, obviously, on your
14 examination of Ms. [REDACTED]?
15 A. Correct.
16 Q. And you’ve relied on your review of the
17 medical records?
18 A. Yes, sir.
19 Q. Anything else?
20 A. No, sir.
21 (Exhibit 8 marked.)
23 Q. I’ve made a list of the things you’ve
24 relied upon on notebook paper, highly technical, and
25 marked it as Plaintiff’s 8, is that true?


1 A. Yes, sir.
2 Q. What is a diffuse axonal injury?
3 A. Diffuse axonal injury is a concept that has
4 been put forth to explain what happens in head
5 injury. The brain consists of a number of billion
6 cells and they have a cell body and then they have a
7 big, long projection coming from them called an axon.
8 At the end of that axon there’s a little terminal
9 that can communicate with the next neuron in the
10 chain.
11 It has been put forth that one of the
12 things that happens in a head injury is that there is
13 — something happens to the axons. Some people think
14 that the axons shear. Others think that they swell
15 and in that swelling, the transport of chemicals
16 along the axon is interrupted. That’s basically what
17 diffuse axonal injury means. It can be either of
18 those things.
19 Q. You said a few times it has been put forth.
20 In your view are diffuse axonal injuries real?  Does
21 that really happen?
22 A. Sure it did.
23 Q. Could it have happened here?
24 A. No, I don’t think it did, sir.
25 Q.  Is it your opinion to a reasonable degree


1 of medical probability that there was no diffuse
2 axonal injury in this case?
3 A. Yes, sir.
4 Q. Is it possible that the back of
5 Ms. [REDACTED]’s head struck the headrest of her car in
6 this wreck?
7 A. Sure it’s possible.
8 Q.  Do you know what time of day this wreck
9 occurred?
10 A. No, sir.
11 Q. Your IME report on page 13 says it is
12 simply not possible for dysphasia to come on a day or
13 two after a minor traumatic brain injury without a
14 subsequent pathological process to explain it, is
15 that right?
16 A. Yes, sir.
17 Q. What’s your basis for that conclusion?
18 A. It’s simple medicine. Simple neurology.
19 You see, if you have a speech disorder, it means that
20 something has happened to some area of the brain. It
21 could be the language generating area or it could be
22 the areas that control the muscles that actually
23 phonate by moving your vocal cords, et cetera; but I
24 can’t think of any process by which you can injure
25 the brain and then, absent anything else going on,


1 hours later those areas suddenly dysfunction.
2 I can think of ways where there can be a
3 subsequent pathological process, for instance,
4 somebody has an injury, they’re shaken up, the next
5 day they go to the doctor, they take a Valium, they
6 start slurring their speech, aha, it was the Valium.
7 Or somebody has a serious injury and over the course
8 of the next day they develop swelling, cerebral
9 edema, but that isn’t what happened.  Or that they
10 develop a hemorrhage that isn’t apparent on the
11 initial CT scan in the emergency room, and we see
12 this all the time, and then subsequently that
13 hemorrhage is apparent, but in those cases there has
14 to be some subsequent thing to happen.
15 Q. You mentioned swelling and cerebral edema
16 and I think I’ve heard that your opinion was in this
17 case that there was no swelling of the brain or
18 cerebral edema?
19 A.  Correct.
20 Q.  Why did you reach that conclusion?
21 A. Those things are rather easily seen on
22 imaging studies.
23 Q. So when the brain swells, it should show up
24 on what kind of study?
25 A.  CT or MRI, either one.


1 Q. And is there any medical textbook that you
2 consider authoritative on the subject of whether
3 dysphasia can occur a day or two after a traumatic
4 brain injury?
5 A. Not that I know of, sir.
6 Q. Is there any study that you can cite that
7 explains the things you just told me?
8 A. No, sir.
9 Q. I think you describe it as simple medicine.
10 From what sort of authoritative source does that
11 simple medicine come?
12 A. Training and experience. I’m a neurologist
13 and I’m trained to know how the central and
14 peripheral nervous systems function and how they
15 dysfunction, how pathological processes affect them.
16 Q. What specific training are you referring
17 to?
18 A. I did a residency for three years and I
19 have practiced neurology for 13 years.
20 Q. Is there any book, periodical or study that
21 you can cite in support of the conclusion that it’s
22 not possible for the symptoms of a concussion to come
23 on a day or two after the traumatic brain injury?
24 A. That isn’t the question you asked, sir.
25 Q. Okay. Tell me what I messed up on.


1 A. By using the word “symptoms,”
2 you generalize —
3 Q. I should stick to dysphasia?
4 A. Yes.
5 Q  What is dysphasia?
6 A. It’s a speech disorder.
7 Q. Is there any periodical, study or text that
8 you can point me to in support of the conclusion that
9 dysphasia cannot come on a day or two after a
10 traumatic brain injury?
11 A. No, sir, nothing that I can think of.
12 Q. Is there any subsequent pathological
13 process that you can think of at issue in this case?
14 A. No, sir.
15 Q. And by that we mean that you don’t know of
16 any possible cause for Ms. [REDACTED]’s reported
17 symptoms other than the motor vehicle accident that
18 we’re here about, is that true?
19 MR. KEITH:  Object to the form.
20 A. Not exactly.
22 Q. Tell me why not.
23 A. After reading the medical record and very
24 carefully considering it, one of my opinions, sir, is
25 that some of these symptoms may have been suggested


1 to her. Some people are more suggestible than
2 others. And [REDACTED] was accompanied by a woman who I
3 believe was a nurse who worked in a brain injury unit
4 and I think the best explanation, only because there
5 aren’t any others, is that these symptoms may have
6 been suggested by this individual. I actually think
7 that’s more believable than she made them up
8 completely and maliciously.
9 Q. So is it your conclusion that someone
10 suggested to Ms. [REDACTED] that she had dysphasia?
11 A. I think it’s probably the best explanation
12 that I can think of, sir.
13 Q. Could you testify that to a reasonable
14 degree of medical probability someone suggested to
15 Ms. [REDACTED] that she had dysphasia?
16 A. Yes, but not in those exact words. What I
17 could say is that I believe the presence of this
18 other individual acted as a force of suggestion and
19 that that is the best explanation I can come up with
20 for why she had these symptoms because I can think of
21 no subsequent pathologic process that did it.
22 Q. So is it or is it not your opinion to a
23 reasonable degree of medical probability that someone
24 else suggested to Ms. [REDACTED] that she had dysphasia?
25 A. Yes, it is.


1 Q. It is, okay. And you said your basis for
2 that opinion is — I better just ask you. What is
3 your basis for the opinion that someone else
4 suggested to Ms. [REDACTED] that she had dysphasia?
5 A. A couple of things. First of all, there is
6 no better explanation. There is no subsequent
7 pathological process that I can identify. Second of
8 all, in 15 years of practicing — 14 years, something
9 like that, I’ve noticed that people can sometimes
10 fall to the power of suggestion when they’re with
11 medical professionals. They behave differently
12 around them through no volitional act of their own
13 and that the interaction between a person and a
14 medical professional can sometimes influence their
15 symptoms and the course of an illness.
16 This is particularly true when you see a
17 patient who comes from a family full of doctors and
18 it’s especially true when those doctors don’t come to
19 the appointment, but the person says and does things
20 that leads you to believe that they’ve been listening
21 to other people and those people have weighed in.
22 Q. The opinion we’re talking about now is that
23 someone suggested — your opinion, succinctly
24 phrased, is the reason Ms. [REDACTED] displayed
25 dysphasia is because someone suggested it to her, is


1 that right?
2 A. Yes, sir. But I would caution you again to
3 thinking it was that simple. I’m not implying
4 someone said to her go in there and slur your speech.
5 That’s not what I’m saying. What I’m saying is that
6 this person who is a nurse from a brain injury ward
7 or something like that most likely latched on to
8 something, and I could just tell you in my experience
9 with medical professionals these things can happen.
10 Symptoms can simply blow up out of proportion. And,
11 once again, as I’ve said before, I don’t think this
12 was volitional.
13 Q. And the person you’re talking about, I
14 think, is LuRae [REDACTED], is that right, or do you
15 know?
16 A.I don’t think I know the individual’s name.
17 I can look and see if I’ve documented it.
18 Q. I don’t recall it from the report.
19 A. Patient’s friend who is a retired ICU nurse
20 with specialty in brain injuries. That was taken
21 directly from the emergency room physician.
22 Q. ICU nurse. So you think that the ICU nurse
23 may have suggested indirectly rather than directly,
24 is that fair?
25 A. Yes, sir.


1 Q. So in your opinion, the reason [REDACTED] had
2 dysphasia was because the ICU nurse suggested it to
3 her indirectly?
4 A. Correct.
5 Q. Have you ever spoken with this ICU nurse
6 that we’ve talked about?
7 A. I have not.
8 Q. Did [REDACTED] say anything to you during your
9 meeting with her to indicate that the idea for
10 dysphasia came from this ICU nurse?
11 A. She didn’t. My guess is she wouldn’t
12 realize it.
13 Q. Have you ever met this ICU nurse before?
14 A. No.
15 Q. What other alternatives did you exclude
16 before coming to the conclusion that the reason
17 Ms. [REDACTED] had dysphasia was because the ICU nurse
18 indirectly suggested it to her?
19 A. Hemorrhage, hydrocephalus, stroke, foreign
20 body. Those things are all excluded.
21 Q. Is there any medical study or text that you
22 can point to in support of your conclusion that the
23 reason Ms. [REDACTED] had dysphasia was because the ICU
24 nurse indirectly suggested it to her?
25 MR. KEITH: Object to form of that


1 question.
2 A. No, sir. I don’t think anything is written
3 about that specific of a situation.
5 Q. Do you know of any peer reviewed articles
6 that would support your conclusion that the reason
7 [REDACTED] had dysphasia was because the ICU nurse
8 indirectly suggested it to her?
9 A. No, sir.
10 Q. Do you believe that any of [REDACTED]’s other
11 symptoms are attributable to suggestion from the ICU
12 nurse?
13 A. Yes, sir.
14 Q. Which ones?
15 A. Her very slow, shuffling gait. In fact,
16 the emergency room physician said patient was very
17 slow, shuffling gait, patient feels unsteady but
18 isn’t visibly unsteady.
19 Q. So we have the gait, the dysphasia.
20 Dysphasia is speech, right?
21 A. Yes, sir.
22 Q. Any other symptoms that you believe were
23 caused by the indirect suggestion of the ICU nurse?
24 A. No, sir.
25 Q. How soon after this wreck did Ms. [REDACTED]’s


1 dysphasia begin, to the best of your knowledge?
2 A. Somewhere prior to 9/24/2010. It’s
3 recorded as having been waxing and waning, but today
4 was by far the worst, implying that it had to have
5 been going on at least yesterday. The day before
6 that appointment would have been the 23rd, which
7 would be two days after the accident.
8 Q. So is it your opinion, then, that the first
9 time Ms. [REDACTED] displayed dysphasia was on the 23rd,
10 or do you know one way or the other?
11 A. I can’t be sure, but it was sometime
12 between the 21st and the 23rd.
13 Q. Do you know when Ms. [REDACTED] first spoke to
14 the ICU nurse following this accident?
15 A. No, sir, I don’t. All I know is that she
16 was present with her on the 24th.
17 Q. On the?
18 A. 24th.
19 Q. Do you know when after this wreck
20 Ms. [REDACTED]’s slow, shuffling gait first appeared?
21 A. No, sir.  That isn’t specifically
22 referenced.
23 Q. As to the appearance of dysphasia, you
24 don’t have any knowledge as to whether it appeared
25 first at any specific time other than it was before


1 that medical record was made on the 24th, is that
2 right?
3 A. That’s correct.
4 Q. How would you characterize Ms. [REDACTED]’s
5 dysphasia?
6 A. Well, she didn’t have any when I saw her.
7 Q. Describe for us, please, in as best detail
8 as you can, what Ms. [REDACTED]’s dysphasia was like.
9 A. By this record she didn’t actually have it.
10 She had dysarthria.
11 Q. What is dysarthria?
12 A. Dysarthria is slurred speech.  Dysphasia is
13 actually coming up with incorrect words or incorrect
14 syntactical word order. Dysarthria is a phonation
15 problem. Dysphasia is a language problem. They
16 invoke very different areas of the brain.
17 Q. Dysarthria is a — you just used a couple
18 words and they slipped my mind already.
19 A. Is a phonation problem. The actual
20 formation of the sounds, but language is intact.
21 Q. And dysphasia was?
22 A. Dysphasia is a language disorder meaning
23 words are, syntax are improper but pronunciation may
24 be normal.
25 Q. Now in terms of, I think I asked you when


1 the — when did Ms. [REDACTED] exhibit dysphasia?
2 A. Well, she alleges that she exhibited it on
3 or before the 23rd of September, but it isn’t
4 recorded by any physician.
5 Q. And the dysphasia you believe was caused by
6 the indirect suggestion of the ICU nurse, is that
7 true?
8 MR. KEITH:  Object to form.
9 A. Correct.
11 Q. And when did the dysarthria first appear,
12 or do you believe that she ever had dysarthria at
13 all?
14 A. I believe that she had very — that she was
15 very slightly dysarthric, that’s per the reading of
16 the ER report.
17 Q.Do you believe that the dysarthria was
18 caused by the indirect suggestion of the ICU nurse?
19 A. I have no idea what caused the dysarthria.
20 Q. Do you believe it’s possible that the
21 dysarthria was caused by brain injury?
22 A. No, sir.
23 Q. Why not?
24 A. It doesn’t cause dysarthria.
25 Q. On what do you base your conclusion that


1 brain injuries don’t cause dysarthria?
2 A. Dysarthria is caused by more widespread
3 dysfunction of the brain. For instance, if you drink
4 too much alcohol and alcohol pervades your brain or
5 if you take a couple of Valium tablets, you could be
6 very dysarthric or mildly or even slightly. If
7 you’re overtired, you can be dysarthric. Chances are
8 you’d be slightly dysarthric.
9 The other way that you can get dysarthria
10 is by direct injury to the brainstem itself, but in
11 order to have dysarthria from a brainstem injury
12 you’d have far worse problems, what we call long
13 tract signs. Certainly wouldn’t be able to walk,
14 might not be able to align your eyes. A lot of other
15 things. See, dysarthria isn’t very localized.
16 Q. I don’t know that we ever answered this
17 question. Describe for me, if you will, as best
18 you’re able, what Ms. [REDACTED]’s dysphasia was like.
19 A. To be very clear, she, meaning Ms. [REDACTED],
20 never said she was dysphasic. The emergency room
21 doctor never documented dysphasia. It was alleged by
22 the nurse.
23 Q. By which nurse?
24 A. The ICU nurse who is a friend of
25 Ms. [REDACTED]. That’s according to the record.


1 Q. I see.
2 A. To be clear, it says:  Patient’s friend who
3 is a retired ICU R.N. with specialty in brain
4 injuries states patient has been having some waxing
5 and waning speech problems, difficulty walking.
6 Today was by far the worst with some expressive
7 dysphasia.
8 Q. What do you believe caused Ms. [REDACTED]’s
9 slow, shuffling gait?
10 A. I think that was the power of suggestion.
11 Q. Do you believe that that suggestion also
12 came from the ICU nurse?
13 A. I do. If I may add to that, sometimes
14 people who feel ill act ill. We all hold our
15 stomachs when we have stomach pain, but that doesn’t
16 really help. These are just human behaviors. The
17 important thing is whether they persist or not.
18 As far as the shuffling gait, though,
19 that’s generally not something that you would see
20 just because somebody didn’t feel well. So I think
21 that may have been something that this ICU nurse was
22 looking for, may have latched onto and then, lo and
23 behold, it appears.
24 Q. I need to ask you the same set of questions
25 then with regard to the slow, shuffling gait. So the


1 question is, when, to the best of your knowledge, did
2 Ms. [REDACTED]’s slow, shuffling gait first appear?
3 A. I don’t know. That is not specified.
4 Q. Describe, please, in as great a detail as
5 you can what Ms. [REDACTED]’s slow, shuffling gait
6 looked like.
7 A. I have no idea what her slow, shuffling
8 gait looked like.
9 Q. Do you know of any specific conversation in
10 which the slow, shuffling gait could have been
11 suggested to Ms. [REDACTED]?
12 A.No, sir.
13 Q. Can you cite any medical text, periodical
14 or peer reviewed journal or any medical document in
15 support of your opinion that the slow, shuffling gait
16 was caused by the indirect suggestion of the ICU
17 nurse?
18 A. No, sir.
19 Q. Other than your opinion that there is no
20 other known cause for the slow, shuffling gait, what
21 basis do you have for the opinion that the slow,
22 shuffling gait was caused by the indirect suggestion
23 of the ICU nurse, or is it only that, the exclusion
24 of other causes?
25 A. The exclusion of other causes, the fact


1 that it went away.
2 Q .Do you think that Ms. [REDACTED] was faking
3 her slow, shuffling gait?
4 A.No, sir.
5 Q. Do you think she was faking her speech
6 difficulties?
7 A. No, sir.
8 Q.Do you think other witnesses who believed
9 Ms. [REDACTED] was having difficulty with her speech
10 were somehow fooled by Ms. [REDACTED] or by someone
11 else?
12 MR. KEITH: Object to form.
13 A. No. In fact, I think they weren’t.
15 Q. Do you think other witnesses — did I just
16 ask the gait or the speech?
17 A. You asked speech. And by witnesses, I’m
18 referring — I should be clear, I’m referring to the
19 emergency room physician. That’s the only witness to
20 this encounter that I have documentation of.
21 Q. I should ask that then. What documentation
22 do you have of difficulty with Ms. [REDACTED]’s gait?
23 Strike that. You don’t need to go through all that.
24 It takes too much time.
25 Do you think that the other witnesses were


1 fooled by Ms. [REDACTED] with respect to her gait?
2 A. I have no idea.
3 Q. On page 13 of your report there’s the
4 bottom paragraph that you started to allude to
5 earlier. In that paragraph you said it was your
6 opinion that there were one of three causes for
7 Ms. [REDACTED]’s symptoms, is that right?
8 A. Yes, sir.
9 Q. Those three causes were malingering,
10 conversion, or highly suggestible personality type,
11 is that right?
12 A. Correct.
13 Q. Do you think Ms. [REDACTED] is malingering?
14 A. No, sir.
15 Q. Why not?
16 A. Malingerers generally tend not to admit
17 that they have gotten better, and she admits that
18 she’s gotten significantly better.
19 Q. Does her employment status have anything to
20 do with your conclusions about malingering?
21 A. I don’t recall if I had taken that into
22 consideration, but now that you mention it, yes.
23 Q. It’s in that last paragraph we were just
24 looking at.
25 A. Okay.


1 Q. You have psychopathology, parentheses,
2 conversion. What does that mean?
3 A. Conversion is a psychological phenomenon in
4 which a person displays some bodily dysfunction that
5 doesn’t have a true pathological basis, but their
6 subconscious has willed it. It generally occurs in
7 people who have suffered severe psychological trauma,
8 that have been raped or beaten, molested as children.
9 Those are generally the ones who come up with that.
10 Q. Do you think that’s what’s happening with
11 Ms. [REDACTED]?
12 A. No, I don’t think so. I actually think
13 that the power of suggestion is a better explanation.
14 Q. And is that the third option that we
15 outlined earlier in the bottom paragraph of page 13
16 of your IME report?
17 A. Yes, sir.
18 Q. And just to clear that up, you don’t think
19 the psychopathology parenthetically conversion is
20 what’s occurring here, is that true?
21 A. Yes. The reason is I don’t have any
22 psychological history of her. I don’t know her to
23 have been abused or to have a traumatic upbringing or
24 anything like that.
25 Q. In other words, you would not say that it


1 is probable that Ms. [REDACTED]’s problem is related to
2 psychopathology or conversion, is that true?
3 A. Correct, because I don’t have a basis for
4 that.
5 Q. Highly suggestible personality type, do you
6 think that’s the cause of Ms. [REDACTED]’s symptoms?
7 A. I do.
8 Q. On what basis did you conclude that
9 Ms. [REDACTED] has a highly suggestible personality
10  type?
11 A. It has to do with the way she presented
12 herself. The slow, halting speech. It has to do
13 with the initial encounter in the emergency room
14 where she was obviously shaken up but did not have a
15 pathological explanation for her behavior. Things
16 like that.
17 Q. I’ve got, in terms of the reasons you
18 believe she has a highly suggestible personality
19 type, I have slow, halting speech in her meeting with
20 you or in the medical records?
21 A. In the medical records. And the
22 oversimplified language that she used with me.
23 Q. We’ll make another one of these lists.
24 Oversimplified language with you in the IME, I
25 presume?


1 A. Yes, sir.
2 Q.And then slow, halting speech in the
3 medical records?
4 A. Correct.
5 Q. And then she was shaken with no
6 pathological explanation?
7 A. No, sir. She was shaken when she was in
8 the emergency room, sure, that she was affected by
9 the fact that she was in a motor vehicle crash.
10 Having been in one myself, I know that happens, but
11 the behavior that she displayed in the emergency room
12 on 9/24 turned out to have no pathological basis.
13 Q. Behavior in ER had no pathological basis?
14 A. Correct. We spoke about a subsequent
15 pathological process and there just wasn’t one.
16 Q. Pathologic or pathological?
17 A. Very good question. I think either is
18 acceptable.
19 Q. Fewer letters is more better.
20 So the reasons to believe that Ms. [REDACTED]
21 has a highly suggestible personality type are her
22 oversimplified language in her IME with you, her
23 slow, halting speech in her medical records, and her
24 behavior in the ER having no pathological
25 explanation?


1 A. Correct.
2 Q. Is that right?
3 A. Yes, sir.
4 Q. Am I leaving anything out?
5 A. Not that I can think of right now.
6 Q. If you think of something, can you let me
7 know?
8 A. Yes, sir.
9 Q. Have I now marked all the reasons we went
10 over?
11 A. Yes, sir.
12 Q. I’ll hand it to Mr. Keith for his
13 examination.
14 (Exhibit 9 marked.)
16 Q. Do you believe that the person doing the
17 suggesting in this case is the ICU nurse who
18 accompanied Ms. [REDACTED] to the hospital?
19 A. I think that’s highly likely.
20 Q. Do you know who it is?
21 A. By name?
22 Q. No. You just said it’s highly likely. Do
23 you think it could be someone else, or do you know
24 one way or the other?
25 A. I have no evidence to suggest that it was


1 someone else.
2 Q. What evidence do you have to suggest that
3 it was the ICU nurse that accompanied Ms. [REDACTED] to
4 the hospital other than the fact that she accompanied
5 Ms.[REDACTED] to the hospital?
6 A. Having seen this before, seeing the way
7 people interact, seeing the way patients act when
8 they’ve been around medical professionals, you learn
9 these things over the years, sir.
10 Q. Is there anyone other than the ICU nurse
11 who accompanied Ms. [REDACTED] to the hospital that you
12 think might be doing the suggesting that causes
13 Ms. [REDACTED]’s symptoms in this case?
14 A. Not that I know of.
15 Q. Is the highly suggestible personality type,
16 is that what you would call a functional cognitive
17 disorder?
18 A. No, sir.
19 Q. Do you believe that there is a functional
20 cognitive disorder in this case?
21 A. No, sir. If I take functional cognitive
22 disorder to mean one that is verified and validated.
23 Q. What does verified and validated mean?
24 A. Well, there are ways of evaluating
25 cognitive disorders.


1 Q. I guess maybe the easier way to ask it is
2 this: Do you have any basis to testify in this case
3 that, to a reasonable degree of medical probability,
4 there is a functional cognitive disorder involved?
5 A. My belief is that there is not.
6 Q. You believe there is not a functional
7 cognitive disorder involved?
8 A. There is not.
9 Q. I see.
10 A. In that, I should clarify, I’m taking the
11 adjective “functional” to mean legitimate,
12 verifiable, et cetera. Sometimes as neurologists we
13 use the word functional to describe something that is
14 factitious and not real. Like functional visual loss
15 is someone who has no basis for visual loss but
16 simply says they can’t see. So if I can restate —
17 Q. You bet.
18 A. I believe she does not have cognitive loss.
19 Q. I see.
20 A. I prefer not to use the word functional
21 because it is used in directly opposite ways by
22 neurologists, unfortunately.
23 Q. In other words, you believe there is no
24 cognitive loss at issue in this case?
25 A. That’s correct.


1 Q. And I think I had misinterpreted your
2 report to understand it to mean that you believed a
3 functional cognitive disorder was the cause of
4 Ms. [REDACTED]’s problems, but in reaching that
5 conclusion, I would have been misreading your report,
6 right?
7 A. Correct. Could you point me to that? I’m
8 terrified I’m going to mislead you.
9  Q. Yes. Page 15. Diagnosis number one.
10 A. Okay. So in this circumstance I’m using
11 “functional” to mean something that is not
12 verifiable; in other words, that is present but not
13 verifiable, has no basis in actual pathology.
14 And I apologize, sometimes the term
15 “functional” is used in other ways and I probably
16 should have left it out entirely.
17 Q. So you believe there was no concussion in
18 this case and there is no cognitive disorder in this
19 case?
20 A. Correct.
21 Q. Is that right?
22 A. Yes, sir.
23 Q. You do believe there was a cervical strain?
24 A. Yes, sir.
25 Q. And I think you would agree the cervical


1 strain was caused by the motor vehicle accident, is
2 that true?
3 A. That’s correct.
4 Q. So the forces at issue in the motor vehicle
5 accident were at least sufficient to cause that
6 cervical strain?
7 A.Correct.
8 Q. In terms of the temporomandibular joint, if
9 it’s all right with you I’ll use TMJ instead of
10 saying temporomandibular joint as we sit here today,
11 is that all right?
12 A. Yes, sir.
13 Q. Are you a TMJ expert?
14 A. No, sir.
15 Q. Are you going to be offering any opinions
16 to a reasonable degree of medical probability
17 relating to the TMJ point?
18 A. No, sir.
19 Q. That will save me a page of questions.
20 Do you know what speed Ms. [REDACTED]’s
21 vehicle was going at the time of the wreck?
22 A. I do not.
23 Q. Do you know what speed the freezer was
24 going at the time of the wreck?
25 A. No, sir.


1 Q. For purposes of that question, please
2 assume that the box that hit Ms. [REDACTED]’s vehicle
3 contained a freezer.
4 A. Will do.
5 Q. Did you calculate the change in velocity of
6 Ms. [REDACTED]’s vehicle as the result of this
7 collision?
8 A. No, sir.
9 Q. Did you calculate the change in velocity of
10 Ms. [REDACTED]’s head as a result of this collision?
11 A. No, sir.
12 Q. I take it that your position is you don’t
13 need to know the change in velocity of Ms. [REDACTED]’s
14 head or the change in velocity of her vehicle in
15 order to reach a conclusion as to whether this wreck
16 caused a concussion, is that right?
17 A. That’s correct.
18 Q. Do you think it’s possible that this wreck
19 aggravated a preexisting TMJ condition?
20 A. I don’t know. I don’t have an opinion
21 either way. I’m not an expert in temporomandibular
22 joint disorders.
23 Q. You have no opinions relating to the TMJ?
24 A. That’s correct.
25 Q. Do you believe that Ms. [REDACTED] has a


1 mental health disorder?
2 A. I don’t have enough basis to be sure.
3 Q. In other words, given what you know now,
4 you don’t have enough information to have an opinion
5 one way or the other as to whether Ms. [REDACTED] has a
6 mental health disorder, is that true?
7 A. Correct, sir. I can’t be sure. I think
8 it’s possible.
9 Q. Do you have an opinion to a reasonable
10 degree of medical probability as to whether
11 Ms. [REDACTED] has a mental health disorder?
12 A. No.
13 Q. When you’re trying to find out if a symptom
14 is a result of suggestion, as you believe symptoms to
15 have been in this case, what signs or indicia do you
16 look for to tell you whether the problem is
17 suggestion?
18 A. I didn’t understand that word you used.
19 Signs or?
20 Q. Indicia?
21 A. Indicators?
22 Q. Yeah, indicators, same thing.
23 MR. KEITH: Legal indicators, indicia, yes.
25 Q. Let me ask the question because I probably


1 screwed it up in other ways as well.
2 When you’re considering whether someone’s
3 symptoms are caused by the suggestion of another as
4 you have concluded in this case, what signs or
5 indicators do you look for to reach that conclusion?
6 A. Well, first and foremost it has to be —
7 there has to be the presence of someone who could
8 have induced this. In my line of work as a
9 physician, time and time again it’s contact with
10 medical professionals, they can really cause a person
11 to behave differently, or at the very least become
12 extraordinarily anxious about what’s wrong with them.
13 That’s the first thing.
14 The second thing is you see it. You end up
15 seeing behaviors that are very classic, the slow,
16 halting speech, the careful walk that’s very slow,
17 one foot deliberately planted in front of the other.
18 Those are not things that arrive out of injury at
19 all. Those are things that arise out of the
20 suggestion of injury.
21 Q. I wrote down presence of someone who could
22 do the suggesting, the slow, halting speech and the
23 careful walk?
24 A. Right. Those are two examples of behaviors
25 that you could observe. So you’d need some force to


1 do the suggesting and some behaviors that you could
2 observe that are consistent with it.
3 Q. Can you think of any medical text, peer
4 reviewed journal or any document like that that would
5 give us some of the signs or indicators of suggestion
6 being the source of the problem?
7 A. No, sir, I can’t. But I will say that I
8 can’t remember ever reading in any textbook of
9 medicine one single word about patients that I would
10 meet in practice who would embellish or misrepresent
11 their own symptoms, yet I’ve witnessed that from the
12 day I started practice. And I’m not saying that she
13 did, but there are things they don’t teach you in
14 textbooks that you learn on the job.
15 Q. So that we’re clear, are you saying that
16 Ms. [REDACTED] embellished or misrepresented her
17 symptoms?
18 A. I don’t believe she purposefully did either
19 of those.
20 Q. You used the term maximum medical
21 improvement in your report and I take that paragraph
22 to mean that you believe Ms. [REDACTED]’s improvement is
23 over, is that right?
24 A. That she’s gotten all the improvement she’s
25 going to get. It doesn’t necessarily mean


1 normalization.
2 Q. So you think that Ms. [REDACTED] has gotten
3 all the improvement she’s going to get, although that
4 doesn’t necessarily mean she’s totally normal, is
5 that true?
6 A. That’s correct.
7 Q. And then you had a section there called
8 recommendations for further care and you wrote none,
9 is that right?
10 A. That’s correct.
11 Q. You don’t think Ms. [REDACTED] should get any
12 further care with respect to this wreck, is that
13 true?
14 A. It says I wasn’t recommending any further
15 care.
16 Q. Do you have an opinion as to whether she
17 should receive further care in connection with this
18 care?
19 A. I do have an opinion. My opinion is that
20 the type of care that she’s getting may or may not
21 have been responsible for the improvement that she’s
22 had. There’s no way to know. She could have
23 improved without any treatment. But right now it has
24 reached a point in which it’s just no longer doing
25 any good. It doesn’t mean that all of a sudden you


1 just cease. There is such a thing as being weaned
2 from medical care.
3 Q. In your opinion should Ms. [REDACTED] continue
4 to receive medical care or not?
5 A. Just long enough that she can be weaned
6 from the dependency of the doctor-patient
7 relationship.
8 Q. So in your opinion, Ms. [REDACTED] should
9 receive medical care just long enough to wean her
10 from the doctor-patient relationship?
11 A. Correct. There may be medications that
12 she’s now taking that might need to be slowly
13 discontinued, things like that. Stopping care
14 abruptly isn’t always a good idea.
15 Q. Anyway, there’s no further care that you
16 would recommend for Ms. [REDACTED], is that true?
17 A. Correct.
18 Q. I wanted to review some symptoms with you
19 and see if you think they were real or whether you
20 agree with them or not. I understand you do not
21 think she sustained a concussion?
22 A. That’s correct. But that’s not a symptom.
23 Q. Right. Do you believe that she was dazed
24 at the scene of the wreck?
25 A. I don’t have any way of knowing.


1 Q. Do you believe that Ms. [REDACTED] had no
2 memory following seeing the box in her windshield and
3 preceding being parked on the side of the road and
4 somebody patting her arm?
5 A. I have no way of knowing.
6 Q. Do you believe that she exhibited a broad
7 based or shuffling gait?
8 MR. KEITH:  When?
10 Q. At any point?
11 A. No, sir, but I believe she exhibited a wide
12 based and hesitant gait for Dr. Futrell and a normal
13 gait for me.
14 Q. So you believe she had a wide based and
15 hesitant gait, true?
16 A. Correct.
17 Q. But you don’t think she had a shuffling
18 gait?
19 A. Correct.
20 Q. Do you believe she had garbled speech?
21 A. I’m not so sure that’s a very specific
22 term.
23 MR. KEITH: Yeah, for that reason let me
24 just object to the form of that question.


1 Q. I guess another way to put it is you never
2 actually witnessed Ms. [REDACTED]’s speech problems, is
3 that right?
4 MR. KEITH: Object to the form.
5 A. That’s correct.
7 Q. In your opinion did she exhibit speech
8 problems, or do you have an opinion one way or the
9 other?
10 A. She exhibits a classic speech pattern of
11 the use of simplified terms and earlier in the course
12 of her injury before meeting me of a slow, halting
13 speech.
14 Q. Do you think she ever exhibited dysarthria?
15 A. I do. I think if I can trust the emergency
16 room physician’s notes, that she experienced very
17 slight dysarthria.
18 Q. Do you think she ever exhibited dysphasia?
19 A. No, sir.  I have no basis to conclude that.
20 Q. Do you think that she ever had, past tense,
21 neck pain?
22 A. Yes.
23 Q. Do you think she ever had shoulder pain?
24 A. Yes.
25 Q. Do you think she ever had headaches as a


1 result of this wreck?
2 A. I believe she did, but I can’t find it
3 right now.
4 Q. Do you think she ever had diminished
5 cognition?
6 A. No.
7 Q. Do you think she ever experienced a lack of
8 endurance or, in other words, excessive fatigue?
9 A. I don’t know.
10 Q. Do you think at present Ms. [REDACTED]
11 experiences neck pain?
12 A. There’s no way I can know for certain. She
13 told me she does.
14 Q. Do you have any reason to disbelieve her?
15 A. No.
16 Q. Do you think that Ms. [REDACTED] experiences
17 shoulder pain?
18 A. I don’t think we spoke specifically about
19 it, but I can look.
20 We didn’t speak specifically of shoulder
21 pain.
22 Q. Do you think she experiences pain in the
23 area between the neck and shoulder?
24 A. I don’t know. Between the neck and
25 shoulder she said she experiences muscle tension.


1 Whether that’s simply a sense of tightness or pain, I
2 don’t think we went into further detail.
3 Q. So in other words, you don’t know whether
4 she currently experiences pain between her neck and
5 shoulder?
6 A. Correct.
7 Q. Do you believe she presently experiences
8 excessive fatigue?
9 A. I don’t know, sir.
10 Q. Do you believe she presently experiences
11 thinking and cognitive issues?
12 A. I don’t know what thinking issues is, but I
13 don’t think she experiences cognitive deficits.
14 Q. Do you think she currently experiences
15 decreased endurance?
16 A. I don’t know.
17 Q. Do you have an opinion to a reasonable
18 degree of medical certainty as to whether Ms. [REDACTED]
19 has returned to her status from before the wreck?
20 A. I don’t. I don’t know what she was like
21 before the wreck.
22 Q. In other words, then, you don’t know
23 whether Ms. [REDACTED] has returned to normal?
24 A. That’s correct.
25 Q. That’s because you haven’t talked with


1 anyone who knew Ms. [REDACTED] before the wreck, is that
2 right?
3 A. Yes, sir.  And I also have no idea whether
4 she was normal before or not.
5 Q. You never met Ms. [REDACTED] before the IME,
6 have you?
7 A. No, sir.
8 Q. You’ve not spoken with anyone who’s talked
9 with people who knew Ms. [REDACTED] before the wreck,
10 have you?
11 A. No, sir.
12 Q. Does a person need to have the background
13 of a medical doctor to determine whether someone
14 sustained a concussion in a car wreck?
15 A. I think it’s best. I think a layperson can
16 identify a concussion. They do it every day at high
17 school football games, but I don’t think they’re
18 qualified in every single case.
19 Q. What about in this case, could one of
20 [REDACTED]’s friends who does not have medical training —
21 or strike that.
22 Could one of [REDACTED]’s friends who does not
23 have a medical degree make a determination as to
24 whether she sustained a concussion in this wreck?
25 MR. KEITH:  Object to form.


1 A. I have no idea. They could make a
2 determination, but who knows whether they’d be right
3 or wrong.
5 Q. Could they make a valid determination?
6 MR. KEITH: Object to form.
7 A. Honestly, sir, they could only say yes or
8 no and they’d have a 50/50 chance of being right.
10 Q. I see. Could a person without any medical
11 training testify to a reasonable degree of
12 probability that someone in this wreck sustained or
13 did not sustain a concussion?
14 MR. KEITH: Object to the form.
15 A. I don’t think so because every other time
16 you’ve asked that question, you always said a
17 reasonable degree of medical probability or certainty
18 and you left it out of that statement. I don’t know
19 if you did it deliberately or not.
20 What I can tell you is I don’t think an
21 untrained person could render an opinion to a
22 reasonable degree of medical certainty.
24 Q. I left it out because we were talking about
25 without medical degrees.


1 A. Very well.
2 Q. Let’s talk about fees.  What is your hourly
3 fee for reviewing records?
4 A. $400 per hour.
5 Q. Is it 750 for testifying whether it’s
6 deposition or trial?
7 A. Yes, sir.
8 Q. Is that what you’ll be charging either Home
9 Depot or Home Depot’s lawyers going forward in this
10 case if you’re asked to do more work?
11 A. Either one of those fees, whichever it is.
12 Q. Who paid your IME fee, was it Hawkins
13 Parnell or Home Depot?
14 A. I don’t know.
15 Q. It appears looking at Plaintiff’s Exhibit 7
16 that Harkins Parnell paid the IME fee in this case.
17 A. Yes, sir. They’re listed as the
18 responsible party. I can’t tell you with certainty
19 if that matches the person that signed the check.
20 MR. BUTLER: You reckon they’re good for
21 it?
22 MR. KEITH: I don’t know.
24 Q. Other than the IME for which you’ve billed
25 in Plaintiff’s Exhibit 7 and the testimony that


1 you’re providing as we sit here right now, have you
2 done any other work related to this wreck for which
3 you expect to be paid?
4 A. No, sir.
5 Q. You said you do how many IMEs per week?
6 A. One or two.
7 Q. Are you doing fewer IMEs now than you used
8 to do?
9 A. No, I don’t think so.
10 Q. Are you doing IMEs now at about the same
11 rate as you were, say, in 2011, 2012?
12 A. Yes, sir.
13 Q. How much of your income comes from
14 litigation work to include record reviews, IMEs or
15 providing expert testimony?
16 A. Five to seven percent.
17 Q. Five to seven percent. Is it true that the
18 total amount of income you receive on an annual basis
19 related to litigation could be in the neighborhood of
20 $250,000?
21 A. I don’t know, sir. That seems like an
22 overestimate.
23 Q. What would you estimate?
24 A. I just calculated the amount that I most
25 likely take in from IMEs to be about $144,000.


1 Q. So in IMEs, you’re looking at about
2 $144,000 per year, is that right?
3 A. Yes, sir.
4 Q. And —
5 A. That’s at a rate of 80 per year, which may
6 be generous. Somewhere around there.
7 Q. Do you also do record reviews as distinct
8 from IMEs?
9 A. Yes, sir.
10 Q. How many of those do you do?
11 A. Maybe two a month.
12 Q. You said two a month record reviews?
13 A. Yes, sir.
14 Q. Do you do any other work that’s related to
15 litigation other than record reviews and IME?
16 A. When I’m called upon to testify.
17 Q. As like an expert witness?
18 A. Well, for instance, here. I don’t know if
19 that’s my status or not. I’m not a lawyer, but when
20 somebody calls and notices a deposition, obviously I
21 do it.
22 Q. I see. Do you ever testify in a case that
23 does not also involve an IME or a record review?
24 A. Yes, sir.
25 Q. How would you categorize that set of cases?


1 A. Well, times I’m deposed as a treating
2 physician. There have been times in the past when I
3 have given expert testimony in a medical malpractice
4 case, but that would fall under that same thing with
5 record reviews I guess.
6 Q. So the number of record reviews you do, is
7 it still two per month if we include things like your
8 testimony in medical malpractice cases that we just
9 talked about?
10 A. Yes, sir. That’s maybe once every three or
11 four years.
12 Q. How often per month are you asked to
13 testify in trial or deposition as a treating
14 physician?
15 A. I’d say maybe five times per year.
16 Q. Your overall litigation work, is it about
17 the same today as it has been for the last two or
18 three years?
19 A. Yes, sir.
20 Q. I think you brought your case list.
21 (Exhibit 10 marked.)
23 Q. Have I marked the case list that you
24 brought to the deposition as Plaintiff’s Exhibit 10?
25 A. Yes, sir. Those are only cases in which


1 I’ve offered testimony either live or — I’m sorry.
2 Either in court or by deposition.
3 Q. So this would not include IMEs or record
4 reviews where you did not testify?
5 A. That’s correct.
6 Q. And how far does this go back? I see
7 you’ve already done one deposition today, is that
8 right?
9 A. No, sir. That was yesterday. The date is
10 wrong.
11 Q. I want to make a note so we fix that. If I
12 strike out this 24 and write 23, as I’ve just done,
13 does that make Plaintiff’s Exhibit 10 accurate with
14 regard to the diffuse axonal injury date of the Joyce
15 Dunn deposition?
16 A. That’s correct.
17 Q. It appears the testimony list you’ve given
18 me goes back to 2000, is that right?
19 A. Yes, sir.
20 Q. Does this include all the occasions in
21 which you’ve testified since 2000?
22 A. Unless some were accidentally omitted. I
23 rely on my staff to keep that list.
24 Q. In other words, you’re just not sure one
25 way or the other?


1 A. Correct.
2 Q. In terms of the breakdown in your work
3 between representing plaintiffs and defendants, is it
4 about the same now as it has been for the last two to
5 three years?
6 A. I would say.
7 Q. You would say yes?
8 A. I would say yes, I’m sorry.
9 Q. As of January of last year, a hundred
10 percent of your witness work was for defendants,
11 insurance companies or defense lawyers, is that true?
12 A. As of January of last year?
13 Q. January of 2012, yes.
14 A. Do you mean from January 2012 to the
15 present? I’m sorry, I’m not understanding.
16 Q. What I’m referring to is an occasion last
17 year where you were asked a similar question in
18 January of 2012, and at that point you said in the
19 last two to three years a hundred percent of your
20 witness work had been for defendants, insurance
21 companies or defense lawyers. Does that sound
22 accurate?
23 A. It very well could be. There may have been
24 one or two cases that weren’t. Was that question
25 asked of IMEs or of all work?


1 Q. I believe it was limited to testimony.
2 A. Okay. Then may very well be accurate.
3 Q. Since that time have you ever testified
4 when you were not testifying on behalf of a
5 defendant, insurance company or defense lawyer?
6 A. May I look?
7 Q. Sure.
8 A. Number one is a treating physician. May
9 2nd, 2013, personal injury case, I testified for the
10 plaintiff. June 27, 2012, personal injury suit, I
11 testified for the plaintiff. January 19, 2012 was —
12 I’m not sure exactly what that was. Somebody was
13 trying to override a last will and testament of one
14 of my patients by saying he was demented and I had to
15 give an opinion on that. I don’t know how you’d
16 count that.
17 Q. Sounds like what we call an undue influence
18 case. Does that term sound familiar?
19 A. Kind of does. That’s since January of
20 2012.
21 Q. So since January of 2012 the only two cases
22 in which you’ve testified on behalf of a plaintiff in
23 a personal injury case were May 2nd, 2013 and June 27
24 of 2012, is that right?
25 A. Correct.


1 Q. I think we went through these lawyers and
2 your work with Hawkins Parnell. Yeah, we went
3 through that earlier. I wanted to ask you to review
4 a few medical records with me. We’re going to have
5 to do some marking here.
6 (Exhibit 11 marked.)
8 Q. I’m now handing you some medical records
9 marked Plaintiff’s Exhibit 11, is that true?
10 A. Yes, sir.
11 Q. These appear to be records generated by
12 Dr. Peter Futrell, is that right?
13 A. That’s correct.
14 Q. Looking now on the second page, Dr. Futrell
15 concluded, quote:  This is most likely postconcussive
16 even though some symptoms started several days after
17 the trauma.
18 Did I read that correctly?
19 A. Yes, sir.
20 Q. Do you disagree with that statement?
21 A. Yes, sir. But, quite frankly, he was there
22 at the time. I have lots of subsequent medical
23 records and her whole unfolded history to rely on.
24 But yes, I do disagree.
25 Q. So on the basis of what you have reviewed,


1 you disagree with Dr. Futrell?
2 A. Yes, sir.
3 Q. Let’s turn to the next one.
4 (Exhibit 12 marked.)
6 Q. I’m now handing you some medical records
7 that I’ve marked Plaintiff’s Exhibit 12, is that
8 right?
9 A. Yes, sir.
10 Q.And this is, on the top right you see that
11 page 1 of 19?
12 A. Yes, sir.
13 Q. Please turn to page 17 of 19. These appear
14 to be the records of a Dr. Kristin Rigby, is that
15 right?
16 A. Yes, sir.
17 Q. And she diagnosed Ms. [REDACTED] with
18 postconcussive syndrome, is that true?
19 A. Yes, sir.
20 Q. Do you disagree with that?
21 A. Yes, sir.
22 Q. Let’s go to the next batch here.
23 (Exhibit 13 marked.)
25 Q. I’ve now marked medical record as


1 Plaintiff’s Exhibit 13, is that right?
2 A. Yes, sir.
3 Q. This is the record of a Dr. Juan Armstrong,
4 is that right?
5 A. Yes, sir.
6 Q. Dr. Juan Armstrong said that Ms. [REDACTED]
7 had slurred speech, status post motor vehicle
8 accident most likely secondary to concussion
9 syndrome, is that right?
10 A. Yes, sir.
11 Q. Do you disagree with Dr. Armstrong?
12 A. I don’t know what concussion syndrome is.
13 Q. Insofar that Ms. [REDACTED] sustained a
14 concussion, you would disagree with Dr. Armstrong, is
15 that true?
16 MR. KEITH: Object to the form. You can
17 answer.
18 A. Yes, sir.
19 (Exhibit 14 marked.)
21 Q. I’m now showing you some medical records
22 I’ve marked as Plaintiff’s Exhibit 14, is that right?
23 A. Yes, sir.
24 Q. These appear to be the records of
25 Dr. Harben, is that right?


1 A. Yes, sir, that’s correct.
2 Q. And I’m looking on page 1. At the bottom
3 it says “Assessment.” Dr. Harben wrote: Probably
4 postconcussion syndrome with impaired word finding
5 and articulation, rule out higher level cognitive
6 impairment. Mildly impaired balance.
7 Did I read that right?
8 A. Yes, sir.
9 Q. Do you disagree with Dr. Harben?
10 A. Yes, sir. Well, I disagree with his
11 diagnosis of postconcussion syndrome which he
12 qualifies as probable. Whether or not she had mildly
13 impaired balance on 9/25/2010, I have no way of
14 knowing.
15 Q. So insofar as Dr. Harben concluded that
16 Ms. [REDACTED] had sustained a concussion, you disagree
17 with him, is that true?
18 A. Correct.
19 Q. I better do some more numbering of my
20 exhibit stickers.
21 (Exhibit 15 marked.)
23 Q. I’ve now marked as Plaintiff’s Exhibit 15
24 some more medical records, is that right?
25 A. Yes, sir.


1 Q. And these appear to be the records of
2 Dr. Frank Puhalovich?
3 A. Yes, sir.
4 Q. I’d like you to look two places. On the
5 first page he writes: The patient is a 47-year-old
6 female who presents with a complaint of concussion.
7 And then on the second page under
8 assessments and plans, he writes concussion again.
9 A. Yes, sir.
10 Q. Did I read that right?
11 A. You did.
12 Q. Does that mean that Dr. Puhalovich means
13 that Ms. [REDACTED] had a concussion?
14 MR. KEITH:  Object to the form.
15 A. Well, there’s two statements. The first
16 one means that she presents with a complaint of,
17 which means she said it, not him.
19 Q.Okay.
20 A. And the second one is his assessment, and I
21 don’t know what less than 30 minutes means, if that’s
22 a time of the appointment. Oftentimes with
23 concussion there’s a designation for the amount of
24 loss of consciousness. So I don’t know what the less
25 than 30 minutes is.


1 Q. It could mean she lost consciousness for
2 less than 30 minutes, although you’re not sure, is
3 that fair?
4 A. Correct. It could be the time of the
5 appointment as well.
6 Q. Insofar as Plaintiff’s Exhibit 15 indicates
7 that Dr. Puhalovich concluded that Ms. [REDACTED] had a
8 concussion, you disagree with Dr. Puhalovich, is that
9 right?
10 A. Yes, sir.
11 (Exhibit 16 marked.)
13 Q. I’m now showing you a medical narrative of
14 Dr. Harben that’s been marked as Plaintiff’s Exhibit
15 16, is that right?
16 A. That’s correct.
17 Q. On page 2 at the very top he writes: After
18 the wreck, her speech was impaired and she was having
19 difficulty walking.
20 Did I read that right?
21 A. You did.
22 Q. Do you have any base to agree or disagree
23 with that?
24 A. Insofar as I don’t know exactly what he
25 means or when he means, I can’t just give a blanket


1 agreement to it.
2 Q. Is it fair to say you have no basis to
3 agree or disagree with it?
4 A. Correct.
5 Q. Let’s turn to page 3. At the very top he
6 writes: Additionally, Ms. [REDACTED] reported that she
7 has experienced cognitive and physical fatigue after
8 the wreck. She finds that she tires after brief
9 physical activity.
10 Do you have any basis to agree or disagree
11 with the accuracy of the symptoms described in that
12 passage that I’ve just read?
13 A. No, sir. I already told you you can’t
14 disagree with symptoms. A person tells you them; you
15 can’t disagree with them.
16 Q. You don’t have a basis to agree or disagree
17 with the passage there at the top of page 3 of
18 Plaintiff’s Exhibit 16, is that true?
19 A. That’s correct.
20 Q. In the third paragraph on page 3,
21 Dr. Harben writes, quote: I concur with Dr. Futrell
22 and Dr. Puhalovich that Ms. [REDACTED] is suffering
23 postconcussive symptoms from a traumatic brain
24 injury, end quote.
25 Did I read that right?


1 A. Yes, sir.
2 Q. Do you disagree with Dr. Harben in the part
3 I just read?
4 A. Yes, sir.
5 Q. Let’s go to page 5. It’s actually going to
6 be on page 5 and 6. I’m going to read most of the
7 paragraph and ask you your opinion on it.
8 The passage I’m asking about is, quote:
9 Ms. [REDACTED] has been a cooperative patient and has
10 shown a strong desire to get better. I have seen her
11 eight times since the wreck and each time she has
12 been pleasant and receptive to treatment. She has
13 followed advice and maintained a positive outlook.
14 She is not lazy and has tried to return to
15 her preinjury level of function. In fact, she worked
16 multiple jobs prior to the wreck and is trying to
17 resume as much of her prior work schedule as
18 possible. I do not believe Ms. [REDACTED] is
19 malingering or exaggerating her symptoms.
20 Do you have any basis to agree or disagree
21 with that passage?
22 A. I agree with it.
23 MR. KEITH: Let me just object to the form
24 of the question.


1 Q. And, doctor, I think you said “I agree with
2 it,” is that true?
3 A. Yes, sir.
4 Q. All right. I’m pretty nearly out of
5 questions here so let’s take a break while I look
6 over the outline.
7 (Recess 3:51 to 3:54.)
9 Q. It occurred to me as I was walking in the
10 door that I probably failed to mark some of your
11 file, which is not a good thing to do if you’re a
12 lawyer. I’m thinking that this is the only part I’ve
13 missed Do you know of anything else I’ve missed?
14 A. Well, does this mean everything in there?
15 Q. Yes.
16 A. Everything I brought in was contained in
17 those two red charts. You removed some stuff and
18 labeled it and then this is the only other thing on
19 the bottom.
20 Q. All right.
21 A. This is one thing that is missing, sir, and
22 it’s bothering me and in the spirit of being truthful
23 with you, I’m actually going to look for it.
24 Q. What are you looking for?
25 A. Unless I’m confusing the cases. A court


1 order. There was a court order restricting what I
2 could ask her.
3 Q. We’re probably okay without that in there.
4 MR. BUTLER: What do you think, Mr. Keith?
5 MR. KEITH: It’s a matter of public record.
6 I guess you could say did you receive a copy of the
7 court order? You received a copy of it.
8 A. I received a copy of it, but it bothers me
9 that I can’t find it and I don’t know where it is.
10 MR. KEITH:  If you say you had it.
11 A. I had it.
12 (Exhibit 17 marked.)
14 Q. Dr. McCasland, I’ve got two sheets in front
15 of me that I haven’t marked yet, one of them I’ve
16 just marked Plaintiff’s 17, is that right?
17 A. Yes, sir.
18 Q. It’s labeled Deposition Information Sheet,
19 true?
20 A. Yes, sir.
21 (Exhibit 18 marked.)
23 Q. And then the next one appears to be another
24 copy of the notice. I’ve now marked that Plaintiff’s
25 18, is that right?


1 A. Yes, sir.
2 Q. Have I now marked everything on the table
3 that you’ve brought or is associated with your file
4 anyway?
5 A. Yes, sir.
6 Q. Do you believe that Ms. [REDACTED] presently
7 has any symptoms related to this wreck?
8 MR. KEITH: Object to form.
9 A. It has been a little while since I saw her
10 so things may have changed, but as I recall, she
11 complained of some neck pain that was ongoing. I
12 have no reason to disbelieve her. So she could very
13 well have some neck pain.
15 Q. Other than neck pain, do you think
16 Ms. [REDACTED] presently has any symptoms related to
17 this wreck?
18 MR. KEITH: Object to form.
19 A. No, sir.
21 Q. But she could have neck pain related to
22 this wreck?
23 A. She could. I’m not sure.
24 Q. You do believe at one point she had a
25 cervical strain related to this wreck, but I take it


1 you’re not sure whether that resolved?
2 A. That’s correct.
3 Q. So the force was at least enough to cause
4 cervical strain, right?
5 A. True. Although you can get a cervical
6 strain watching television.
7 Q. Would the forces at issue in this wreck
8 have been more than you would get chewing your food
9 or walking downstairs, stuff like that?
10 A. Yes, sir.
11 Q. Okay. I see you laughing.
12 I saw — there’s one other thing I wanted
13 to ask you and that is about your waiting room.
14 While I was in your waiting room —
15 A. You noticed the piece of art called
16 “Counsel Approaching The Bench.”
17 Q. You are correct, doctor. And I took a
18 picture of the piece of artwork called “Counsel
19 Approaching The Bench” and I’m now displaying it to
20 you on my iPhone, is that right?
21 A. Yes, sir.
22 Q. That hangs in your waiting room?
23 A. Yes, sir.
24 MR. BUTLER: Mr. Keith, would you like to
25 see it? I’m going to e-mail that to opposing


1 counsel, if there’s no objection, and that will be
2 Exhibit Number 21 to your deposition, if that’s
3 agreeable?
4 MR. KEITH: It’s your deposition.
5 MR. BUTLER: I take that to mean that it is
6 agreeable. And with that — this —
7 A. This is the same artist, by the way.
8 MR. BUTLER: All right. With that, we’re
9 through. Thanks. No further questions, unless
10 Mr. Keith has any.
11 MR. KEITH: Not today.
12 (Deposition concluded at 4:00 p.m.)
13 (Signature waived.)


6 I hereby certify that the foregoing
7 transcript was taken down, as stated in the
8 caption, and the colloquies, questions, and
9 answers were reduced to typewriting under my
10 direction; that the transcript is a true and
11 correct record of the evidence given upon said
12 proceeding.
13 I further certify that I am not a
14 relative or employee or attorney of any party, nor
15 am I financially interested in the outcome of this
16 action.
17 This the 24th day of May, 2013.
22 ______________________________________
23 Genevie Morell, RPR, CCR-2760

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